Opinion
December 11, 1940.
1. MORTGAGES: Tender. In an action to determine title where defendants asserted a claim under a foreclosure of a mortgage and plaintiff in reply pleaded tender of the mortgage debt upon condition not enforcible, such tender constituted no defense.
Conditional tender constitutes no valid defense to a foreclosure where the conditions are other than those which a mortgagee is under a legal duty to fulfill.
2. ACTION TO QUIET TITLE: Equity. In an action to set aside a sheriff's deed to land sold under execution where defendant pleaded title under the foreclosure of a mortgage and the plaintiff in reply pleaded conditional tender of the mortgage debt, the sale under execution became moot and need not be considered by a court of equity.
The court will not exercise its equitable power to set aside an execution sale for no purpose as where the parties seeking it would be in the same position after the sale as before.
3. QUIETING TITLE. The purpose of a suit to quiet title is to determine the existing title and all rights of any litigants in the controversy may be determined in one suit.
A party therefore has the right to rely on title acquired after the commencement of suit.
In an action to set aside a sheriff's deed and determine title, a cross bill by defendant was not improper where it asked affirmative relief and set out the acquisition of title by foreclosure of a mortgage after the action was filed.
The scope and extent of relief to which the parties in this type of case may have is liberal and comprehensive and plaintiffs have waived any right to complain that the defendants' cross bill should have been stricken.
Appeal from Barton Circuit Court. — Hon. Thos. W. Martin, Judge.
AFFIRMED.
R.A. Pearson for appellants.
(1) The wife has the right of homestead exemption in her own land when the husband asserts none for the protection of his property, and no claim is necessary. Sec. 2998, R.S. 1929; Sharp v. Stewart, 185 Mo. 518; State v. Oberheide, 39 S.W.2d 397; Ahman v. Kemper, 119 S.W.2d 256; 29 C.J., 969; Tapley v. Ogle, 162 Mo. 197. (2) Nor is a temporary removal caused by necessity, with intention of returning when circumstances permit, an abandonment of the homestead. There is a presumption the right continues. 29 C.J., 938; Snodgrass v. Copple, 131 Mo. App. 352; Seilert v. McAnnaly, 223 Mo. 516. (3) Nor is its conveyance by the wife fraudulent as to creditors, and its sale under execution by a judgment creditor is void. Farmer v. Handley, 9 S.W.2d 894; Pocoke v. Peterson, 165 S.W. 1022; New Madrid Banking Co. v. Brown, 165 Mo. 32. (4) Nor is a judgment or execution levy a lien against it. Sec. 1179, R.S. 1929; White v. Spencer, 217 Mo. 242. (5) And an execution sale without setting aside debtor's homestead is void. Ehlers v. Potter, 219 S.W. 915; Macke v. Bird, 131 Mo. 682. (6) The husband and wife having acquired the homestead through mesne conveyance from the wife, no sale of the wife's interest alone could convey anything. The effect of the husband's filing in bankruptcy would be the same, and abate the execution against both. The bankrupt's property, wherever located, is subject to the exclusive jurisdiction of the bankrupt court, and as to an entirety estate acquired within four months has the effect of severing his liability under the execution and leaving the judgment as though rendered against the other spouse alone, nor could a subsequent dismissal of the bankruptcy validate a sale pending the proceeding. Stifel v. Saxy, 273 Mo., 159, 201 S.W. 67; Chicago Ry. Co. v. Hall, 229 U.S. 514; Ades v. Caplin, 103 A. 94, L.R.A. 1918D, 276; In re Darwin, 117 F. 407; Fed. Bankruptcy Act, secs. 75 (a), (n), (o). (7) Defendants' plea for affirmative relief is of matter arising after plaintiffs' action commenced, and does not state a defense thereto, is inconsistent, irrelevant and a departure. The motion to strike is in the nature, and perform the office of a demurrer. 49 C.J., 563; Cook v. Newby, 213 Mo. 483; Floyd v. Sellars, 44 P. 373; Boyd v. Jones, 49 Mo. 202; Littlefield v. Ramsey, 181 Mo. 621; 49 C.J. 686, sec. 975.
Combs Combs and E.L. Moore for respondents.
(1) Where plaintiff fails to reply, or simply denies the "new matter" in the answer, "under the codes and practice acts defendants may move for and is entitled to judgment on the pleadings." State ex rel. v. Skinker, 324 Mo. 964; Hilburn v. Ins. Co., 129 Mo. App. 678; Young v. Scofield, 132 Mo. 661; Betz v. Tel. Co., 121 Mo. App. 473; Sundmacher v. Lloyd, 135 Mo. App. 517. (2) "Equity will not act unless the right to the relief is clearly established." Steele v. Allison, 228 Mo. App. 656. (3) "Where a pleading is ambiguous it should be taken most strongly against the pleader." Price v. Mining Co., 83 Mo. App. 470; Cherry v. Chorn, 221 Mo. App. 1210. (4) The husband is the head of the family as to exemptions. Section 2998 "does not take away the husband's rights as the head of the family to claim the benefit of said exemption and homestead laws and the wife's right to avail herself of said laws is not an absolute right for if the husband has claimed them the wife is precluded from doing so. It is only in cases where the husband has failed to exercise his right that the wife may exercise her own." White v. Smith, 104 Mo. App. 202; Gladney v. Berkley, 75 Mo. App. 98; Morrow v. Zane, 185 Mo. App. 118; Sharp v. Stewart, 185 Mo. 528. (a) Lortz evidently claimed homestead because of the entirety. But that was created long after he made the debt and was not exempt as to that debt, which was joint and several. Morrow v. Zane, 185 Mo. App. 118; Dickey v. Thompson, 323 Mo. 107; Wharton v. Bank, 223 Mo. App. 240. (5) The record title and actual occupancy are very important in determining whether a sheriff is wrong in not giving notice of exemptions. Vogler v. Montgomery, 54 Mo. 577; St. Louis Brewing Assn. v. Howard, 150 Mo. 450; Rouse v. Caton, 168 Mo. 296; Feurt v. Caster, 174 Mo. 296; Adams v. Adams, 183 Mo. 402. (6) A sheriff's deed is not void because the property sold might have been exempted if the exemption had been claimed. Chance v. Norris, 143 Mo. 235. (7) Defendant may plead as many defenses as he may have, legal or equitable, or both, if consistent. Sec. 777, R.S. 1929; Smith v. Culligan, 74 Mo. 387; Ledbetter v. Ledbetter, 88 Mo. 60; Bank v. Stewart, 136 Mo. App. 24; Finley v. Williams, 325 Mo. 695; Vaughn v. Conran, 20 S.W.2d 968. (a) A man may buy up as many titles as he likes. Cummings v. Powell, 97 Mo. 536; Landes v. Perkins, 12 Mo. 259; Wilcoxen v. Osborn, 77 Mo. 629; Waddell v. Chapman, 238 S.W. 483; Mattison v. Ausmuss, 50 Mo. 553; Mather v. Walsh, 107 Mo. 131. (8) Under Sections 791 and 825 of the Code, parties may plead new matter occurring since the suit was filed. Ward v. Davidson, 89 Mo. 455; Cohn v. Souders, 175 Mo. 466.
This is an action involving title to real estate. Plaintiffs sued to set aside a sheriff's deed to land in Barton County sold under execution to defendants, Rose. Plaintiffs included in their prayer a request for relief in that the court "adjudge and define the respective rights, titles and interests of the parties herein to said property."
Defendants admit they bought the land at the execution sale and deny plaintiffs' right to relief. At the time of the execution sale there was a deed of trust against the land which constituted a paramount lien. The sale under execution was subject to this lien. Later, after this action was begun, the deed of trust was foreclosed and these same defendants were the purchasers at the foreclosure sale. They set up their claim as the absolute owners of the land through their purchase at the foreclosure sale and contend the question as to the validity of the execution sale is no longer in the case. By cross bill they ask affirmative relief to the effect the court should decree that title is in them and that plaintiffs have no right, title or interest in the land.
Plaintiffs, in reply, admit the foreclosure sale and the purchase of the land by defendants. They attempt to avoid the sale by a claim of tender of payment of the debt secured by the deed of trust. They plead: ". . . plaintiffs agreed with one, Workman, that he would take up the said indebtedness and note and pay same to the holder thereof the said mortgagee, and that he should have and hold the lien of the mortgage and be subrogated to same and the rights of mortgagee, and that prior to said mortgage sale said Workman tendered payment to said mortgage of said indebtedness in the presence of and with the consent of the mortgagors, but that said mortgagee refused said payment from said Workman, refused to turn the note to him or mortgagor but insisted on proceeding with the foreclosure, and did foreclose same, the said Workman was then and there and at all times up to said sale ready and willing to pay the amount of said debt and accrued costs."
To this reply defendants filed a motion for judgment on the pleadings which was sustained and judgment was entered decreeing that title to the land was vested in defendants and that plaintiffs have no right, title or interest in the land. Plaintiffs have appealed.
We are confronted, at the outset, with the question whether plaintiffs have pleaded a good and sufficient tender so as to present that issue properly. If so, the judgment rendered on the pleadings only was improper. Under somewhat similar facts the St. Louis Court of Appeals held that such a tender was not good in the case of Rowe v. Bank of Centralia, 221 Mo. App. 262, 2 S.W.2d 191. That was an action to enjoin a foreclosure of a deed of trust and to require the holder of the note secured by it to accept payment as tendered. The facts there showed that a friend of the plaintiff's agreed to advance an amount of money sufficient to pay the note in full. This money was tendered the holder of the note on condition that it endorse the note without recourse and deliver it to the plaintiff. The holder refused to do this but stated that it would accept the money so tendered in payment of the note if it be permitted to cancel the note and satisfy the record as to the deed of trust. The court found that this amounted to no more than a conditional tender, that the condition was one not legally enforcible, and therefore the tender constituted no defense. The decision is sound and is applicable here. We hold that the tender as pleaded in the reply was also conditional.
The law is well settled in this State that a conditional tender constitutes no valid defense to a foreclosure where the conditions are other than those which the mortgagee is under a legal duty to fulfill. [Bridges v. Smith (Mo.), 213 S.W. 858; 41 C.J., Mortgages, sec. 926.] As a result the reply offers no defense to defend to defendants' cross-bill. In view of the admissions, in plaintiffs' reply, of the foreclosure sale and the purchase of the land by defendants, the defendants' cross-bill stands undenied. There is no charge of any fraudulent scheming or collusion between the holder of the note and defendants.
It is our view the parties by their actions and pleadings have, in effect, converted this action into one to quiet title and the question of the validity of the sale under execution has become moot. Certainly, if that question is not moot it has become immaterial under the circumstances and need not be considered for a court of equity will not do a useless thing. It has been held that a court will not exercise its equitable power to set aside an execution sale for no purpose as where the party seeking it would be in the same position after the sale as before it. [Oviatt v. Brown, 14 Ohio, 285.]
The purpose of a suit to quiet title is to determine the existing title. Any and all rights of any litigant in the land in controversy may be determined in one suit. [White v. Kentling, 345 Mo. 526, 134 S.W.2d 39.] A party therefore has the right to rely on title acquired after the commencement of the suit. [Barr v. Stone (Mo.), 242 S.W. 661.] Consequently, there can be no proper objection to the cross-bill filed in this case because it asks the affirmative relief set out. The parties interested in the land in controversy are before the court each asserting a right or interest in the land which is the subject matter of the suit. "Under such circumstances where (as here) the court has jurisdiction both of the parties and of the subject matter, it is the uniform tendency of the judiciary, in order to avoid circuity of action and a multiplicity of suits, to exercise and retain jurisdiction of the cause or proceeding until the rights of the parties in the subject matter of the cause or proceeding are fully adjudicated, and until full and complete relief is awarded, according to the rights of the parties as presented by the pleadings." [Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49.] That case was an action by plaintiff to be declared sole owner of land. Defendant filed a cross bill for partition. We found the crossbill was germane to plaintiff's petition and was available and cognizable as a proper pleading in such an action. So is the cross bill in this case. In following the rule that the scope and extent of the relief which the parties in this type of case may have shall be liberal and comprehensive we have held that defendants may properly make counter claims. [See Clark et al. v. Heckerman, 346 Mo. 458, 142 S.W.2d 35, and the cases cited therein.] Moreover, we find plaintiffs have waived any right to complain here that defendants' cross bill should have been stricken.
The ejectment cases cited by plaintiffs being possessory actions are not in point.
The judgment is affirmed. All concur.